Hard News: Smack to the Future
358 Responses
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@ Matthew
I accept that there are some situations where most parents for many years to come will instinctively use a minor level of force: the stove top being the classic situation where batting the child's hand away is, technically, assault, but where there needs to be wriggle room in interpretation.
And so did Sue Bradford. There are specific clauses in the current bill when force for prevention is allowed, including self-harm. This would never be regarded as an assault.
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I accept that there are some situations where most parents for many years to come will instinctively use a minor level of force: the stove top being the classic situation where batting the child's hand away is, technically, assault, but where there needs to be wriggle room in interpretation.
Sure, just as (as I understand it) it would "technically" be assault if I shoved and old lady out of the way of an oncoming bus roughly enough to cause some bruises. If I wanted to get all Baldock about it, why the hell is the Government 'criminalising' good people, and won't this namby-pamby politically correct nonsense lead to people being left to die? Won't somebody think about the old ladies! :)
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Andy, that defence is available in cases of general assault (hence my qualifier that I would be quite happy for the only defences against assault on a child being those available in any other case of assault), but of course you won't hear the no crowd admitting that the law recognises that preventing self-harm justifies the use of reasonable force in any situation not just in circumstances where your kids are involved.
Craig, see above. The use of reasonable force to prevent harm to another is justified and is available as a defence in the Crimes Act. This is one of the reasons I have no time whatsoever for the argument that teachers won't break up fights by pulling students apart because they're scared of assault charges. It's either a BS situation put forward by people who are doing it in the same vein as Palin's "death squads" crap, or there is some seriously negligent legal advice being dished out to teachers.
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Craig, see above.
Indeed -- I wasn't disagreeing with you but couldn't resist the tease while trying to make the point that, yes, there's some serious theatre going on from the Baldock/McCoskrie Axis of Terminological Inexactitude. :)
I'd actually give people a little more credit than they do. (Typing those words surprises me too.)
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It's not at all clear in what circumstances section 59 allows the use of force. It is reasonably clear, I think, that you can use force to restrain a child from running onto a busy road, but if you smacked your child afterwards for doing it (even immediately afterwards), that might still amount to an offence (subject to the police's discretion not to prosecute). The question in that scenario is are you using force to prevent or correct? The law isn't clear, but it could be argued that any use of force after a child has been bad amounts to correction.
The law is a mess, the referendum question was a stupid one, and Key and Goff say they won't change the law. Which is why I suspect so many people decided to have no part of it. I had been planning to vote yes, but decided in the end to abstain and not be part of the farce.
Another reason not to get exercised by the whole thing: Baldock's party is a joke and will likely remain that way. And National voters are hardly going to desert to Labour over this issue. So what's the risk to Key if he does nothing? The whole thing will probably prove to be simply a colossal waste of money.
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Well, I'm glad you've got that figured out -- because it sure seemed to be the kind of loaded like a rhetorical AK-47 question that could mean whatever the hell you wanted it to. Which was kinda sorta my problem -- if we're going to have CIR, the question should not require the parsing skill of a Talmud scholar on speed.
No, the skills of an average adult seemed to be sufficient for most of the voters. There's obviously some ambiguity in there, as there is in the legislation. The word "reasonable force" is used a lot. Is a light smack for the right reasons reasonable force? Perhaps this referendum answers how NZ feels about that. It's certainly a lot more specific an answer than "40% of people voted for this bunch of people", which is the amazing level of democracy we get every 3 years, and I've never heard you complaining that we shouldn't vote in those because the manifestos and motives are not written in a formal specification language.
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Craig said:
I've known Simon Collins for a long time, have enormous respect for the man and he's smart enough to know a majority of a bare plurality of registered voters is NOT "88 percent" of "New Zealanders". I'll be generous and assume he screwed that up hard on deadline.
This would be the same Simon Collins who gave the entire second page of the Herald to Family First back in July as part of his series on the smacking debate. And I mean gave it to Bob McCroskie - I remember one section being something like "Eight Examples of Good Parents Prosecuted". There was no counter-argument either, because each story that week ended with "*CYFS will respond on Friday." When we go to Friday, Mr. Collins' gave us "CYFS says sorry to 'traumatised' family". The entire series was purely anecdotal rubbish.
He knows exactly what he's doing, and that's selling newspapers.
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Is a light smack for the right reasons reasonable force? Perhaps this referendum answers how NZ feels about that.
Unfortunately, hitting a child with a riding crop and bit of 4x2 is reasonable force to enough New Zealanders serving on juries as to make this whole law change come about in the first place.
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Tim: "This little clip kind of sums up my thoughts on this idea that a smack can be useful parental correction."
You are not really serious are you Tim? I think that Alfie's clip is showing that some of the actions we take don't work like we think. He would advocate that there other things to do if you want to make a real change. (There were times when I used-time out to give us both time to cool down.) Kids are benched in schools but if it doesn't work why not? And what to do to make the naughty kid get it. He explores the way in which perpetrators get wilder with the victim, instead of remorseful and what can be done to change the behaviour. It is a big subject and hard to sum up here. -
Another reason not to get exercised by the whole thing: Baldock's party is a joke and will likely remain that way. And National voters are hardly going to desert to Labour over this issue. So what's the risk to Key if he does nothing?
Or Goff for that matter. As I said up-thread, around the election there were literally dozens of polls where people were asked to name the issues that mattered to them. Did "smacking" even register on one of them?
I've never heard you complaining that we shouldn't vote in those because the manifestos and motives are not written in a formal specification language.
Ben: With all due and sincere respect, I spent a lot of time last year (both here and in my PA Radio pieces) bitching Cullen and English for not closing the case that you can cut government revenue (i.e. taxes), increase government spending and build Jerusalem in this green and pleasant land, without -- as I put it -- "the kind of Enron accounting that, in the private sector, would have them sharing a cell with Bernie Ebbers for the term of their natural lives."
I don't expect Yellow Pages-like briefing books on every area of public policy, but a little respect for my ability to think beyond soundbites and human interest sob stories would be appreciated. And I'm still to be convinced that CIR add anything meaningful to public policy debates worth having.
I also find it deliciously ironic that so-called conservatives and libertarians in the right-o-sphere are born-again enthusiasts for a deliberative legislature being ruled by what is little more than a taxpayer-funded opinion poll. Welcome to (self-selected) mob rule, and the Edmund Burke who wrote this can go get fucked.
To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,--these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.
Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for.
Well, it seems to me that Key is actually being a good conservative -- exercising his judgement on the basis of evidence that does not support the case for another round of radical innovation that just isn't necessary. I can only hope that he, to coin a phrase, stays the course.
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It's not at all clear in what circumstances section 59 allows the use of force. It is reasonably clear, I think, that you can use force to restrain a child from running onto a busy road, but if you smacked your child afterwards for doing it (even immediately afterwards), that might still amount to an offence (subject to the police's discretion not to prosecute).
Er, seems pretty straightforward to me. You can stop a kid doing something by whatever means are necessary; you just can't hit them because they did it/tried to do it. What's confusing there?
More to the point, why is that a problem? I submit that anyone who smacks their child after that child tries to run onto the road (having successfully prevented them doing so) will be doing it to relieve their own stress/anger more than anything else, which is hardly the stuff of which good parental correction is made.
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Er, seems pretty straightforward to me. You can stop a kid doing something by whatever means are necessary; you just can't hit them because they did it/tried to do it. What's confusing there?
It would help if the law actually said that. It doesn’t.
For example, the wording of s59 may also support an argument that inflicting harm after the event may be preventative. If the child who runs across the road gets a belt immediately afterwards, he/she may refrain from running across the road again. In that case is it prevention or correction? I have no idea.
Different people look at s59 and see different things. That’s clear just by reading the different interpretations in this thread.
More to the point, why is that a problem? I submit that anyone who smacks their child after that child tries to run onto the road (having successfully prevented them doing so) will be doing it to relieve their own stress/anger more than anything else, which is hardly the stuff of which good parental correction is made.
People smack for different reasons. Many do it out of anger, but others do it because they genuinely believe the infliction of pain is a valid way to correct errant behaviour (“spare the rod” etc). I’m not saying that’s a valid approach towards parenting, but we shouldn’t assume anyone who smacks has simply lost his/her temper. In many cases they may simply need to learn better parenting skills.
For the record, I don’t think a parent who administers a light smack should be criminalised in most cases. But then the discretion available to the police arguably achieves that anyway. Which is why the entire referendum was a waste of money.
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For example, the wording of s59 may also support an argument that inflicting harm after the event may be preventative.
Surely the bit where its say "whatever I said before, no force for correction" and then says, "did you see back there where I said that about no force for correction" overrides that question.
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Open letter to MPs:
I am writing in support of the repeal of section 59 of the Crimes act.
Our recent referendum on the "smacking" issue contained a misleading question, ironically a kin to, "When did you stop beating your wife?", and the results of the referendum cannot be used to support a reinstatement of the old section 59.
For my parents' generation it was relatively routine for husbands to smack their wives, and we now look at that and wonder how it was tolerated. Future generations will look back on child smacking and wonder how it was tolerated.
Research consistently and conclusively shows that non-violent parenting is generally better for children than parenting that includes smacking.
We are making progress towards becoming a less violent society. The new law sets out an important guideline for parents that will have wonderful outcomes for future generations. Please do not set us back by reinstating the old section 59 of the crimes act.
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People smack for different reasons. Many do it out of anger, but others do it because they genuinely believe the infliction of pain is a valid way to correct errant behaviour (“spare the rod” etc). I’m not saying that’s a valid approach towards parenting, but we shouldn’t assume anyone who smacks has simply lost his/her temper. In many cases they may simply need to learn better parenting skills.
And someone who speeds may need to learn better driving skills, because they're not paying attention rather than doing it deliberately. That doesn't mean it shouldn't be illegal. Quite frankly, I find the notion that someone would rationally and in cold blood inflict pain on their children in order to teach them a lesson much, much creepier than someone lashing out (which is still reprehensible but at least comprehensible.)
If the child who runs across the road gets a belt immediately afterwards, he/she may refrain from running across the road again. In that case is it prevention or correction? I have no idea.
If it isn't stopping them doing it *in the act*, it's not preventative, surely?
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The poster boy for smacking, Simon Barnett said in a recent interview that smacking his older girls appeared to work, but that his 3rd daughter was not impressed so, slightly embarrassed, he said he had to use "other" means. Great that from being dogmatic he has apparently had a rethink.
I think "force used to prevent harmetc" referred to grabbing him, picking her up, restraining, was not to be regarded as assault. This was to counter those who red herringed by saying the Repeal would would make it illegal to even touch a child?! It does not imply that the touch to prevent harm need be a smack.
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If it isn't stopping them doing it *in the act*, it's not preventative, surely?
You may be right. That's certainly what I think the law probably means. But I also concede it's unclear, because other people I have spoken to about what the law means have an entirely different view.
Surely the bit where its say "whatever I said before, no force for correction" and then says, "did you see back there where I said that about no force for correction" overrides that question.
You may also be right. But I wonder whether it is always clearcut where the line between prevention and correction is.
I am writing in support of the repeal of section 59 of the Crimes act.
Repealing the entire section is not the answer.
There are many circumstances where force is justified. Holding back a struggling child who is trying to run across a busy road, burping a windy baby etc. Alll would be assaults if s59 went altogether.
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@Ian
Tim: "This little clip kind of sums up my thoughts on this idea that a smack can be useful parental correction."
You are not really serious are you Tim? I think that Alfie's clip is showing that some of the actions we take don't work like we think. He would advocate that there other things to do if you want to make a real change.Sorry, you're right Ian - I obviously didn't proof-read my own post. I was meaning to say - I agree with Alfie - that actions like smacking never have the consequences we intend them.
My thoughts = Alfie's comments.
'the idea that a smack can be useful parental correction' = the No vote.Hope that clears it up. I need to write with more clarity.
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I hope the one action step that should come out of this from Key and Co is a process to ensure that we no longer have to waste time and money on appallingly worded referendums.
It's not clear whether people voting No want a law change or are simply agreeing with an almost tautological proposition and believe that the current law actually reflects this. So what have we gained?
Any move by Key to actually revist the "anti-smacking" legislation will just encourage more of this sort of referendum tactic.
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I agree with Martin.
As my daughter in law suggests:
"Should stupid referendum questions, as part of a healthy democratic society, be legal in New Zealand?"
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Euan, I'd be quite pleased if they were made a criminal offence :P
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Cheers Tim :)
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I find all the discussion around when you can and can't hit a child creepy - is it prevention or correction - wtf!.
Larry Baldock is particularly creepy and evil - virtually frothing at the mouth at the prospect of more freedom to hit children.
The whole tenet has been about the rights of parents, not children. Otherwise we'd see a return to smacking in schools and pre-schools as part of good teaching practice.
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I hope the one action step that should come out of this from Key and Co is a process to ensure that we no longer have to waste time and money on appallingly worded referendums.
I have the sneaking suspicion that a Citizen Initiated Referenda Act, Repeal Bill would receive a sympathetic hearing. Want to sign my petition. :)
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I find all the discussion around when you can and can't hit a child creepy - is it prevention or correction - wtf!.
It may be creepy, but understanding what the law allows parents to do is kind of essential to the debate about whether the law should change.
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